IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
First Appeal No. 1058 of 2007
Appellant : The New India Assurance Company Limited, Amravati, through its
Regional Manager, Nagpur
versus
Respondents : 1. Smt Shobha wd/o Panjabrao Dhurve, aged about 38 years,
2. Ku Sarika d/o Panjabrao Dhurve,
aged about 23 years,
3. Ravi s/o Panjab Dhurve, aged about
18 years,
4. Vijay s/o Panjabrao Dhurve, aged
about 18 years,
5. Ku Ashvini d/o Panjabrao Dhurve,
aged about 15 years,
6. Bapurao Domaji Dhurve, aged about
83 years,
7. Sau Mainabai Bapurao Dhurve, aged
about 78 years,
2
All residents of Rajurwadi, Tahsil
Morshi, District Amravati
8. Prakash Shriram Kakade, aged adult,
resident of Rajurwadi, Tahsil Morshi,
District Amravati
9. The Oriental Insurance Company
Limited, through its Divisional
Manager, Rajapeth, Dist. Amravati
10. Balwinder Singh Sukhdeo Singh
Sinddhu, aged adult, resident of New
Loha Mandi, Indore, MP.
11. Madhuradas Gopal Thakkar, aged
adult, resident of New Loha Mandi,
Indore, MP.
Mr Mahesh Joshi, Advocate for appellant
Mr L.S. Patil, Advocate for respondents no. 1 to 7 Mr S.K. Pardhy, Advocate for
respondent no.
Coram : A.P. Bhangale, J
Dated : 9th December 2009
3
Judgment.
1. The appellant has challenged validity and legality of the judgment and Award dated 30.7.2007 passed by the Member, Motor Accident Claims Tribunal, Amravati
in MACP No. 118 of 2004 whereby the Tribunal awarded compensation in the sum of Rs. 400,000/- inclusive of no fault liability along with interest at the rate
of 7.5% per annum from the date of petition till realisation. The amount of compensation was apportioned in the ratio of 50 : 50 between owner/driver of
the offending vehicle and insurers of the offending motor vehicle Jeep bearing registration No. MH-27-H-1034 driven at a high speed and owner/driver/insurer (appellant) of the Truck bearing registration No. MP-09-KB-1907 kept standing on the road without tail lights on.
2. On 20.12.2003 at about 09.30 p.m. Panjabrao Bapurao Dhurve, aged about 40 years, was travelling by jeep (owned by his friend) bearing No. MH-27-H-1034 from Dharni to Amravati. The accident occurred while jeep was on Paratwada- Amravati Road in front of Fatima Convent when it had dashed against the Truck bearing No. MP-09- KB-1907 kept standing on the road without tail lights on. 4
The Jeep driver drove in high speed and jeep was dashed against the Truck from its back-side. In the result, Panjabrao Bapurao Dhurve died on the spot due to
negligence of drivers of both the motor vehicles.
3. Claimants contended that the deceased Punjabrao was the only earning member of their family and used to earn Rs. 3000/- per month by doing agricultural labour work and used to work on his own field and taking crops of about Rs.
50,000/- per year. He was ambitious, hale and hearty; dynamic, enthusiastic having pleasant personality without any ailment or vices and had planned to built high living standard for the family, but on account of the accident,
entire planning collapsed and claimants-dependents lost their support and beloved family member and suffered irreparable loss.
4. The claimants claimed compensation in the sum of Rs. 6,75,000/- on account of loss of income for future; loss of amenities of life and also loss of love and affection; pains and sufferings; loss of consortium; funeral expenses etc. Interest on award amount was demanded at the rate of 18% per annum with costs.
5. Respondents insurer and owner of offending motor vehicle resisted the claim by their written statements and denied
liability to pay compensation.
6. Claimant Smt Shobha widow of deceased deposed in support of claim to establish that deceased Punjabrao left behind four children taking education and parents apart from her and that he was travelling in Jeep No. MH27-H-1034
belonging to his friend gratuitously without paying any fare and he died due to accident which occurred due to negligence and fault of both offending vehicles. Witness No. 2 K.L. Tekam is eye witness to the accident who was co-
traveller with deceased travelling without fare in Jeep MH-27-H-1034 belonging to their friend Prakash Kakade. It was driven by driver Rajesh Kakade in high speed and gave dash to the back-side of truck standing in the middle of the
road in front of Fatima Convent without tail lights on at night-time, thus jeep driver who could not control the vehicle collided with the truck.
7. Learned counsel for the appellant advanced submissions at length in support of appeal. He did not dispute that the offending truck (involved in the accident) was validly insured covering the date of accident. But assailed quantum of compensation awarded by the Tribunal on the
ground that reasons were not discussed to justify the award which resulted into excessive award. It is further submitted that contributory negligence between
the drivers of offending motor vehicles ought to have been apportioned as 60% for the jeep driver and 40% for the truck driver in view of ruling in Gujarat
State Road Transport Corporation v. Rameshbhai Parsottambhai reported in 2003 (2) T.A.C. 147 (Guj). Reference is also made to ruling in National Insurance
Co. Ltd. v. Chand Ratan and ors reported in 2001 (2) T.A.C. 715 (MP) to submit that the MP High Court had limited the liability of truck driver in such case
to one-fourth only. I have perused the rulings. I propose to discuss the cases of contributory and composite negligence later at appropriate stage in the
judgment.
8. Learned Advocate for claimants supported impugned judgment and award as just and reasonable in the facts and circumstances of case.
9. First, I would deal with submissions as to quantum of compensation. An accident can cause irreparable loss to entire family especially when only earning member of family is lost. The dependents in family are required to come
out of shock and look forward to live without head or manager of the family who was sole earning member. Monetary compensation in just and reasonable sum is
consolation for them enabling them to try to forget the unfortunate incident and look forward and live. The Motor Vehicles Act has definite social purpose to reinstate the dependents to the position to which they would have been had the accident not occurred. But amount of compensation to be awarded shall not be a bonanza of comforts, facilities, amenities out of misfortune but need to
be just, proper and reasonable. The requirements as to burden of proof in common law of evidence to prove negligence on the part of driver in an application under Section 166 may really become difficult and time consuming
process. The Legislature in its wisdom as part of social justice provided second schedule as a system under Section 163A of the Act whereby such burden can be avoided in the interest of alternate speedy justice delivery. The
Tribunal can use it as a guide to select appropriate multiplier to strike a just balance between claim and compensation to be awarded after considering all relevant factors. Age of victim and ages of dependents are
relevant factors to determine a proper multiplier. The 2nd Schedule provided has been discussed in ruling in the case of Deepal Girishbhai Soni v. United India Insurance Company Limited reported in (2004) 5 SCC 385. 2nd Schedule is to be used not only for to refer age of victim but also
other factors relevant therefor. The Tribunal has to interpret beneficial provisions for the third parties liberally with a view to give effect thereto
and attempt answering complicated questions of facts and law arising in each case of accident instead of merely relying upon mathematical equations. As
observed in UP State Road Transport Corporation v. Trilok Chandra (1996) 4 SC C 362, there are certain shortcomings in the Second Schedule hence selection of multiplier cannot depend only on the age of victim. The Tribunal is required to off-set the multiplier fixed in the 2nd Schedule and strike a just balance along with life expectancy of dependent/claimants. Ages of dependent- claimants apart from age of victim considered in 2nd schedule are, therefore, required to be borne in mind as relevant factors to strike a just and appropriate balance between the claim and compensation to be awarded. The purpose of awarding compensation to dependents is to provide them just and fair compensation as they were suddenly deprived of the source of their maintenance. As far as possible, they shall be provided with the means which were available to them before the accident occurred. Therefore, principle of fixation of multiplier
would depend on the facts and circumstances of each case. For fixing just and reasonable compensation all relevant factors including including fixing appropriate multiplier have to be borne in mind.
10. According to claimant witness Smt Shobha, her deceased husband was earning as agricultural labourer @ Rs. 100/- per day and also working on his own field. The prospects of future advancement in life can also form relevant
consideration to determine his gross income as held in Susamma Thoms v. Kerala State RTC reported in 1994 ACJ 1 (SC). Future prospects of increase cannot be
overlooked to fix an average per monthly earning. Keeping in view increase in inflation in future, his gross monthly income would have shot up in due course of time to at least double the amount than what he was earning at the time of his death. Amount of Rs. 3000/- on an average would be taken as gross monthly earning of the deceased. Deducting 1/3rd expenses as his personal expenditure, amount of Rs. 2000/- would have been available for
dependents/claimants. Thus, annual income of Rs. 24000 x 13 = Rs. 3,12,000/- (applying 13 as appropriate multiplier taking guidance from 2nd Schedule). To this figure of Rs. 3,12,000/- conventional figure of Rs. 15000/- by way of loss of estate and consortium, funeral expenses etc. will lead to total figure of Rs. 3,27,000/-. This is the amount which claimants would be entitled to get by way of just compensation from the appellant/insurer and owner/drivers of offending motor vehicle responsible for the accident along with reasonable interest at the rate of Rs. 7.50% per annum. For these reasons, the amount awarded on higher side by the Tribunal needs modification accordingly.
11. In the rulings cited by learned counsel for appellant and referred to above, in Chand Ratan's case in paragraph 6A law as to composite negligence has been referred to. In such cases claimants representing victim 11 (third party) who died in the accident need not establish the responsibility as to contributory negligence of drivers of two or more motor vehicles involved in the accident as the death resulted due to composite negligence of two or more
tort feasors who are severally and jointly liable to pay compensation to the claimants. Negligence is failure to take care, precaution which a prudent and reasonable man would have taken in particular circumstances. Contributory
negligence is assessed in the ratio of liability of drivers of two motor vehicles involved in the accident. Both drivers had last opportunity to avoid, but both were careless or negligent to do something which any reasonable and prudent person would have done to avoid accident. Jeep driver driving at high speed contributed to the accident as greater care was required from him to see that no accident shall occur before the jeep dashed at a stationary truck from rear side. The truck parked on road negligently had tail lights off at the time of accident indicating composite negligence and carelessness on the part of truck driver as well who could have by adopting precaution keep on the tail lights to alert any driver driving on high way at high speed. Adequate precaution and care was certainly required also from the jeep driver to avoid accident as also by the stationary truck driver who could have taken adequate precaution to avert accident. The question, therefore, is, can the responsibility be apportioned at 50:50 equally like in a case of contributory negligence on the part of jeep and truck driver as the Tribunal fixed it. Driver of the jeep driving at high speed knocking the truck from back-side and negligence of truck driver keeping it stationary parked on the high-way with tail lights off are both responsible for cause of the motor accident. Considering their composite negligence in the facts of the present case cannot appropriately be apportioned equally to the extent at 50 : 50 between jeep driver and truck driver for causing the accident. True it is that it was the duty of both drivers to take adequate precautions and to avoid accident. Both the jeep driver and truck driver were expected to take
precautions and care in the facts and circumstances of the case. On the principle of doctrine of last opportunity, every person who had last opportunity to avoid accident by exercise of proper care, will also be held responsible for accident in an accident involving two or more vehicles
where a third-party (other than drivers and/or owners of the vehicles involved) claim damages. It is said that the compensation is payable in respect of the
composite negligence of the drivers of those vehicles. In case of contributory negligence, when a person suffers injury partly due to negligence on the part of another person and partly as a result of his own negligence, the negligence on the part of injured or victim which contributed to the accident is referred to as his "contributory negligence". In the present case, it appears a clear case of composite negligence in view of ruling in T.O. Anthony v. Karvarnan and ors reported in 2008 (3) SCC 148.
12. Thus, when a person/victim suffered without any negligence on his part but as a result of combined effect of negligence of two other persons, it is not the case of "contributory", but what has been said by famous jurist Pollock as injury or death by "composite" negligence. In the present case, there was no
contributory negligence on the part of victim, hence, the question of apportionment of his negligence does not arise. Both the drivers were 14 responsible for the accident and as a result of their composite negligence
victim had suffered death and compensation is payable to the third-party in respect of composite negligence. The question of contributory negligence would
arise if legal heirs of driver who died (involved in accident) are claimants or owner is claiming damages for the loss to vehicle. Then only question of ratio or the extent of contributory negligence of the driver concerned can be determined.
13. In case of composite negligence, each wrong doer is jointly and severally liable to the injured for payment of entire compensation. Legal heirs or legal representatives of victim in such case need not establish or prove the extent of responsibility of each driver (wrong doer) separately nor it is necessary for the Tribunal to determine the extent of responsibility of each driver
(wrong doer) separately. Claimants are free to recover the compensation awarded from any of the wrong doer (tort feasor) which they like. The tort feasor who makes the payment will be free to recover/realise the amount paid from other tort feasors.
14. Learned counsel for appellant referred to ruling in National Insurance v. Chand Ratan and ors (supra) to determine liability of tort feasors inter-se. He argued that liability of jeep driver and truck driver who parked truck stationary without tail lights on may be determined in the ratio of 75 : 25. In my opinion, driver of the truck keeping it stationary or parked on a high-way at night time without indicating by tail- lights or back lights about the fact that the truck is parked stationary at one place, is also responsible for the accident with that of the jeep driver who drove negligently at a high speed. In case of composite negligence amount of compensation cannot be apportioned because claimants cannot be directed to proceed to recover the apportioned amount from each vehicle owner/insurer involved in the accident. However, from the material on record in this case, amongst drivers involved in the accident (tort feasers), it appears reasonable to hold jeep driver negligent to the extent of 60% and truck driver to the
extent of 40% in the facts and circumstances of this case.
15. For reasons stated above, the appeal is partly allowed. The impugned judgment and award is modified with
direction that Insurance Companies for Jeep as well as Truck (offending vehicles); owners and drivers thereof shall pay compensation in the sum of Rs. 3,27,000/- (Rs. Three lakhs twenty-seven thousand only) jointly and severally to the claimants with interest at the rate of 7.50 per cent per annum from the date of claim petition till realisation (after adjusting the deposits or payment already made to claimants). The claimants are free to realise the amount from any of the tort-feasors/owner/ insurer of offending motor vehicles as they may like and the tort-feasor/insurer who made the payment of compensation shall be free to recover the apportioned amount from other set of tort-feasors/owner/insurer. Costs of the proceedings shall be paid to claimants
proportionate to their share. Payment already made be adjusted accordingly and excess amount, if any, be refunded to party who deposited it. Appeal allowed
accordingly.
A.P. BHANGALE, J
hsj
